Around the Bar City Bar Hosts Screening and Discussion of The ResponseThe Response is an award-winning 30-minute courtroom drama based on the actual transcripts of Guantanamo military tribunals. Speakers at last week's event included, from left, Richard V. Meyer, Associate Professor of Law at the United States Military Academy and Lecturer in Law at Columbia Law School; Sig Libowitz, the film's writer and producer; Jonathan Hafetz, Associate Professor of Law at Seton Hall University School of Law; and Josh Colangelo-Bryan, Senior Attorney at Dorsey & Whitney LLP.

Recent Committee ActivityObtaining Evidence From Social Networking WebsitesThe Professional Ethics Committee issued Formal Opinion 2010-2, which addresses the question of whether a lawyer, acting alone or through an agent such as a private investigator, may use deception to gain access to an otherwise secure social networking page and the potentially helpful information it holds. The opinion concludes that a lawyer may not use deception to access information from a social networking webpage. Rather, a lawyer may seek information maintained on social networking sites by availing themselves of informal discovery, such as the truthful "friending" of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individualˇ¦s social networking page.

Right of Public Access to Adjudicatory Proceedings
An amicus brief filed in NYCLU v. New York City Transit Authority by the Committee on Civil Rights argued that both applicable case law and public policy require an expansive right of public access to any adjudicatory proceeding implicating important liberty and property rightsˇXincluding administrative proceedings held outside the judicial branch. Access to governmental adjudicative proceedings, the brief argues, helps ensure the procedural integrity of the proceedings, permits attorneys to make better-informed decisions for their clients, allows the public to access information about the process and helps foster public debate about issues of social and political significance. The Transit Adjudication Bureau's policy to close access to potential public observers upon a TAB respondent's request is unduly restrictive and violates the First Amendment and limits due process.

Marriage Recognition
The Lesbian, Gay, Bisexual and Transgender Rights Committee filed an amicus brief in the Matter of the Estate of H. Kenneth Ranftle. The brief urges that in keeping with New York's marriage recognition rule, valid out-of-state marriages between same-sex couples should be recognized in New York with regard to administering the estate of the deceased. The brief argues that because the respondent is the surviving spouse and sole distributee there is no need for formal notification to the deceased's surviving siblings about the pendency of the proceedings.

City Bar in the NewsNew York Law Journal, October 4, 2010 ‘Requester-Pays’ Presumption Holds Hidden Costs and Pitfalls
“In the last two years, there have been significant initiatives in New York state to address the changing landscape of discovery, but those initiatives have specifically declined to address allocation of ESI costs due to the unsettled state of statutory and case law. In 2009, for example, the Joint E-Discovery Subcommittee of New York City Bar issued an electronic discovery manual intended for use by New York courts, in which it stated that it ‘would not take a position on the issue’ of allocation of discovery costs.”

New York Times, October 1, 2010 When Lawyers Can Peek at Facebook
“Within the past two weeks, both the state bar association and the cityˇ¦s bar group have issued opinions saying that lawyers are allowed, under certain conditions, to get information from peopleˇ¦s social networking sites to use in casesˇKThe New York City Bar took its opinion one step further [than the State Bar] to say that lawyers can go so far as to ‘friend’ someone not represented by an attorney, so long as they make it clear who they are and why they are ‘friending’ the person. The city bar did specifically note that it would be unethical to become someoneˇ¦s friend through deception. In fact, the four-page opinion went into great detail in describing a hypothetical example of the improper way to go about becoming someoneˇ¦s Facebook friend....In the virtual world, the opinion continued, ‘an attorney or her investigator could easily create a false Facebook profile listing schools, hobbies, interests, or other background information likely to be of interest to a targeted witness. After creating the profile, the attorney or investigator could use it to make a friend request falsely portraying the attorney or investigator as the witnessˇ¦s long lost classmate, prospective employer, or friend of a friend.’”

ABA Journal, September 30, 2010 Lawyers Canˇ¦t Friend Potential Witnesses Under False Pretenses, Ethics Opinion Says
“Lawyers canˇ¦t use trickery to obtain evidence on Facebook and other social networking sites, according to a new ethics opinion. The opinion by New York City Bar Association focused on this question: May a lawyer use deceptive behavior to friend a potential witnesses? The barˇ¦s Committee on Professional Ethics concluded the answer is no, while allowing lawyers to play their cards close to the vest. ‘We conclude that an attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request,’ the opinion says.”

Crain's New York, September 30, 2010 NY Lawyers Allowed to Stalk on Facebook
“Both the New York State Bar Association and the New York City Bar Association issued guidelines in the past week allowing lawyers to scour the public pages Facebook, Twitter and other social networks for incriminating evidence against an opposing party in a lawsuit. What is forbidden, however, is for an attorney (or his agent) to deceptively try to ‘friend’ someone on Facebook, in order to be let into the inner circle and gain access to private profiles....The bar associations do not have disciplinary capabilities, so the guidelines are not akin to a legal ruling, but positions taken by New York's bars carry considerable weight with city and state bars around the country. ‘It is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated by postings on a Facebook wall,’ said the city bar's opinion....New York City Bar guidelines, issued Wednesday, said a lawyer (or lawyer's agent), may send a ‘friend request’ for the purpose of gaining access to a private profile as long as he identifies himself as a lawyer and makes his intentions clear, according to Samuel Seymour, president of the associationˇK‘This will not be the last time we talk about this, I'm sure of that,’ Mr. Seymour said.”

Wall Street Journal, September 29, 2010 Minimum Thresholds for Swaps Urged
“The threshold thought was addressed from a different vantage point by the Committee on Futures and Derivatives Regulation of the New York City Bar Association. The Bar Association recommended, instead, that regulators specify a minimum dollar amount of net exposure, below which an end-user would not be considered to have ‘substantial counterparty exposure.’ It suggested factoring in offsetting trades, central clearing to reduce counterparty risk and the amount and quality of collateral posted. The thinking goes that counting the number of contracts is a less meaningful way to gauge risk.”